Exhibit - 99.B9(a)
ADMINISTRATION AGREEMENT
AGREEMENT made this 30th day of September, 1997 by and between
Xxxxxxx Capital Mutual Fund Group, Inc., a Maryland Corporation (the "Company"
or the "Fund"), and INVESTMENT COMPANY ADMINISTRATION CORPORATION, a Delaware
Corporation (the "Administrator").
W I T N E S S E T H
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WHEREAS, the Fund is registered as an open-end management
investment company under the Investment Company Act of 1940 (the "1940 Act"),
with shares of beneficial interest organized into separate series; and
WHEREAS, the Fund wishes to retain the Administrator, and the
Administrator is willing, to provide management and administrative services to
such Portfolios of the Fund as the Fund and Administrator may agree upon
("Portfolios") and as listed on Schedule A attached hereto and made a part of
this agreement on the terms and conditions hereinafter set forth:
NOW THEREFORE, in consideration of the promises and mutual
covenants herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Fund hereby retains the Administrator to
provide certain management and administrative services, as set forth in Article
2 below. The Administrator agrees to comply with all applicable requirements of
the 1940 Act, the Securities Act of 1933, the Securities Exchange Act of 1934
and any laws, rules and regulations of governmental or quasi-governmental
authorities having jurisdiction with respect to the duties to be performed by
the Administrator hereunder.
2. Services on a Continuing Basis. The Administrator shall
perform the following services on a regular basis which would be daily, weekly
or as otherwise appropriate or reasonably requested by the Fund:
(A) prepare and coordinate reports and other
materials as the Fund's Board of
Directors may reasonably request of the Fund;
(B) prepare and/or supervise the preparation and
filing of all securities filings, periodic financial reports, prospectuses,
statements of additional information, marketing materials, tax returns,
shareholder reports and other regulatory reports or filings required of the Fund
and the Portfolios;
(C) prepare all required filings necessary to qualify
the Fund's shares with state securities authorities to sell shares in all states
where the Fund currently does, or intends to do business;
(D) coordinate the preparation, printing and mailing
of all communications required to be sent to shareholders, including the annual
and semi-annual reports to shareholders, proxy statements, notices and other
reports to Fund shareholders;
(E) coordinate the preparation and payment of Fund
and Portfolio related expenses;
(F) assist in the selection of, investigate, conduct
relations with, and monitor and oversee the activities of the transfer agent,
custodians, accountants, depositories, attorneys, underwriters, insurers, and
such other persons in any other capacity deemed by the Company to be necessary
or desirable for the Portfolios' operations and as requested by the Company;
(G) review and adjust as necessary the Portfolios'
daily expense accruals;
(H) maintain and keep such books and records of the
Fund as required by law and for the proper operation of the Fund and its
Portfolios other than those maintained and kept by the Fund's investment adviser
and servicing agents;
(I) provide the Fund with (i) the services of persons
competent to perform the administrative and clerical functions described herein,
and (ii) individuals acceptable to the Directors for nomination, appointment or
election as officers of the Fund, who will be responsible for the management of
certain of the Fund's affairs as determined by the Directors;
(J) provide the Fund with office space as well as
administrative offices, equipment and facilities as are necessary for the
performance of the Administrator's duties under this Agreement;
(K) monitor each Portfolio's compliance with
investment policies and restrictions as set forth in the Portfolio's currently
effective prospectus and statement of additional information; and
(L) perform such additional services as may be agreed
upon by the Fund and the Administrator.
3. Responsibility of the Administrator. The Administrator
shall be under no duty to take any action on behalf of the Fund or the
Portfolios except as set forth herein or as may be agreed to by the
Administrator in writing. In the performance of its duties hereunder, the
Administrator shall be obligated to exercise reasonable care and diligence and
to act in good faith and to use its best efforts. The Administrator shall have
no liability for any loss or damage resulting from the performance or
non-performance of its duties hereunder unless solely caused by or resulting
from the gross negligence or willful misconduct of the Administrator, its
officers and employees.
4. Reliance Upon Instructions. The Fund agrees that the
Administrator shall be entitled to rely upon any instructions, oral or written,
actually received by the Administrator from the Fund and shall incur no
liability to the Fund in acting upon such oral or written instructions, provided
such instructions reasonably appear to have been received from a person duly
authorized by the Board of Directors of the Fund to give oral or written
instructions on behalf of the Fund or any Portfolio.
5. Confidentiality. The Administrator agrees on behalf of
itself and its employees to treat confidentiality all records and other
information relating to the Fund and Portfolios and all prior, present or
potential shareholders of any and all Portfolios, except after prior
notification to, and written approval of release of information by, the Fund,
which approval shall not be unreasonably withheld where the Administrator may be
exposed to civil or criminal contempt proceedings for failure to comply, when
requested to divulge such information by duly constituted authorities, or when
so requested by the Fund.
6. Equipment Failures. In the event of equipment failures or
the occurrence of events beyond the Administrator's control which render the
performance of the Administrator's functions under this Agreement impossible,
the Administrator shall at no additional expense to the Fund, take reasonable
steps to minimize service interruptions. The Administrator shall develop and
maintain a plan for recovery from equipment failures which may include
contractual arrangements with appropriate third parties making reasonable
provision for emergency use of electronic data processing equipment to the
extent appropriate equipment is available.
7. Allocation of Charges and Expenses.
(A) The Administrator. The Administrator shall
furnish at its own expense the executive, supervisory and clerical personnel
necessary to perform its obligations under this Agreement. The Administrator
shall also provide the items which it is obligated to provide under this
Agreement, and shall pay all compensation, if any, of officers of the Fund as
well as all Directors of the Fund who are affiliated persons of the
Administrator or any affiliated corporation of the Administrator; provided,
however, that unless otherwise specifically provided, the Administrator shall
not be obligated to pay the compensation of any employee of the Fund retained by
the Directors of the Fund to perform services on behalf of the Fund.
(B) The Fund. The Fund assumes and shall pay or cause
to be paid all other expenses of the Fund not otherwise allocated herein,
including, without limitation, organizational costs, taxes, expenses for legal
and auditing services, the expenses of preparing (including typesetting),
printing and mailing reports, prospectuses, statements of additional
information, proxy solicitation material and notices to existing shareholders,
all expenses incurred in connection with issuing and redeeming shares, the costs
of pricing services, the costs of custodial services, the cost of initial and
ongoing registration of the shares under federal and state securities laws, fees
and out-of-pocket expenses of Directors who are not affiliated persons of the
Administrator or the investment adviser to the Fund or any affiliated
corporation of the Administrator or the investment Adviser, the costs of
Directors' meetings, insurance, interest, brokerage costs, litigation and other
extraordinary or nonrecurring expenses, and all fees and charges of investment
advisers to the Fund.
8. Compensation. As compensation for services rendered by the
Administrator during the term of this Agreement, the Fund shall pay to the
Administrator compensation at an annual rate as set forth in Schedule A.
9. Indemnification.
(A) The Fund and Portfolios agree to indemnify and
hold harmless the Administrator from all taxes, filing fees, charges,
assessments, claims and liabilities (including without limitation, liabilities
arising under the Securities Act of 1933, the Securities Exchange Act of 1934,
the 1940 Act, and any state and foreign securities laws, all as amended from
time to time) and expenses, including (without limitation) reasonable attorneys
fees and disbursements, reasonably arising directly or indirectly from any
action or thing which the Administrator takes or does or omits to take or do at
the request of or in reliance upon the advice of the Board of Directors of the
Fund, provided that the Administrator will not be indemnified against any
liability to a Portfolio or to shareholders (or any expenses incident to such
liability) arising out of the Administrator's own willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties and obligations
under this Agreement. The Administrator agrees to indemnify and hold harmless
the Fund and each of its Directors from all taxes, filing fees, charges,
assessments, claims and liabilities (including without limitation, liabilities
under the Securities Act of 1933, the Securities Exchange Act of 1934, the 1940
Act, and any state and foreign securities laws, all as amended from time to
time) and expenses, including (without limitation) reasonable attorneys fees and
disbursements, arising directly or indirectly from any action or thing which the
Administrator takes or does or omits to take or do which is in violation of this
Agreement or not in accordance with instructions properly given to the
Administrator, or arising out of the Administrator's own willful misfeasance,
bad faith, gross negligence or reckless disregard of its duties and obligations
under this agreement.
(B) The rights of a party indemnified under this
Section (an "indemnified party") shall include the right to reasonable advances
of defense expenses in the event of any pending or threatened litigation with
respect to which indemnification hereunder may ultimately be merited. In order
that the indemnification provisions contained herein shall apply, however, it is
understood that if in any case one party (the "indemnifying party") may be asked
to indemnify or hold the indemnified party harmless, the indemnifying party
shall be fully and promptly advised of all pertinent facts concerning the
situation in question, and it is further understood that the indemnified party
will use all reasonable care to identify and notify the indemnifying party
promptly concerning any situation which presents or appears likely to present
the probability of such a claim for indemnification against the indemnifying
party, but failure to do so in good faith shall not affect the rights hereunder.
(C) The indemnifying party shall be entitled to
participate at its own expense or, if it so elects, to assume the defense of any
suit brought to enforce any claims subject to this indemnity provision. If the
indemnifying party elects to assume the defense of any such claim, the defense
shall be conducted by counsel chosen by the indemnifying party and satisfactory
to the indemnified party, whose approval shall not be unreasonably withheld. In
the event that the indemnifying party elects to assume the defense of any suit
and retain counsel, the indemnified party shall bear the fees and expenses of
any additional counsel retained by it. If the indemnifying party does not elect
to assume the defense of a suit, it will reimburse the indemnified party for the
reasonable fees and expenses of any counsel retained by the indemnified party.
10. Duration and Termination of this Agreement. This Agreement
shall continue until termination in accordance with the provisions of this
Section. This Agreement may be terminated only: (a) by the mutual written
agreement of the parties; (b) by either party on 60 days' written notice; or (c)
by either party in the event of a material breach of this Agreement by the other
party, provided the terminating party has notified the other party in writing of
such breach at least 45 days prior to the specified date of termination and the
breaching party has not remedied such breach by the specified date. This
Agreement shall not be assigned by either party without the prior written
consent of the other party
11. Amendments and Assignment. This Agreement or any part
hereof may be changed or waived only by instrument in writing signed by both
parties and may not be assigned by either party without the written consent of
the other.
12. Records. The Administrator shall, directly or through
third parties, maintain and preserve for the periods prescribed therein, records
relating to the services to be performed under this Agreement which are required
under the 1940 Act, and the rules and regulations thereunder. Any records
required to be maintained and preserved under the 1940 Act which are prepared or
maintained by the Administrator on behalf of the Fund shall be prepared and
maintained at the expense of the Administrator, but shall be the property of the
Fund, shall be readily accessible during normal business hours to the Fund and
its duly authorized agents, and shall be surrendered promptly to the Fund on
written request or upon termination of this Agreement. Records shall be
surrendered in usable machine readable form. In case of any request or demand
for the inspection of such records by another party, the Administrator shall
notify the Fund and follow the Fund's instructions as to permitting or refusing
such inspection; provided that the Administrator may exhibit such records to any
person in any case where it is advised by its counsel that it may be held liable
for failure to do so, unless (in cases involving potential exposure only to
civil liability) the Fund has agreed to indemnify the Administrator against such
liability.
13. Notice. Any notice required or permitted to be given by
either party to the other shall be deemed sufficient if sent by registered or
certified mail, postage prepaid, to the following addresses or such other
addresses provided in writing: if to the Fund, at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx; and if to the Administrator at 0000 X. Xxxxxxxxx Xxx, Xxxxx 000, Xxxxxxxx,
XX 00000.
14. Miscellaneous. This Agreement embodies the entire
agreement and understanding between the parties thereto with respect to the
services to be performed hereunder, and supersedes all prior agreements and
understandings, relating to the subject matter hereof. The captions in this
Agreement are included for convenience of reference only and in no way define or
limit any of the provisions hereof or otherwise affect their construction or
effect. This Agreement shall be deemed to be a contract made in New York and
governed by New York law. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement will not be affected thereby. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their officers designated below on the date first
written above.
XXXXXXX CAPITAL MUTUAL FUND GROUP, INC.
By: /s/ Xxxxxxxx X.X. Xxxxx
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Name: Xxxxxxxx X. X. Xxxxx
Title:President
INVESTMENT COMPANY ADMINISTRATION CORPORATION
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
Schedule to the Administration Agreement
Dated as of __________, 1997
between
Xxxxxxx Capital Mutual Fund Group, Inc.
and
Investment Company Administration Corporation
Portfolios: Xxxxxxx Fund
Xxxxxxx Fledgling Fund
Fees: Pursuant to Section 12 of the Agreement, the Fund shall pay
the Administrator compensation for services rendered to the
Portfolios at the following annual rates for each Portfolio
listed above, with a minimum fee of $40,000 annual per
Portfolio:
Average Daily Net Assets Rate
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$0 - $200 million 0.10%
200,000,001 - 500,000,000 0.05%
500,000,001 and greater 0.03%
Term: This Agreement shall become effective on _______, 1997 and
shall remain in effect for an Initial Term of _______ year(s)
from such date and, thereafter, for successive Renewal Terms
of _______ year(s) each, unless and until this Agreement is
terminated in accordance with the provisions of Section ____
of the Agreement.
